Citation Nr: 0733971
Decision Date: 10/29/07 Archive Date: 11/07/07
DOCKET NO. 05-24 541 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for a right knee
condition
2. Entitlement to an initial, compensable rating for benign
breast mass, bilateral.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Scott Walker, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1980 to January
2004.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio.
The Board notes that the veteran alluded to a psychiatric
condition, as secondary to his service-connected benign
breast mass, bilateral, in his December 2004 notice of
disagreement. This matter is referred to the Cleveland, Ohio
RO for further development.
The issue of service connection for the veteran's right knee
condition is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDING OF FACT
The service-connected benign breast mass, bilateral, is
manifested by a 1 cm fibrous mass above the right areola, and
a 1 cm mass superior to the left areola, with less than 5
percent of the exposed areas affected.
CONCLUSION OF LAW
The criteria for a compensable rating for benign breast mass,
bilateral, are not met. 38 U.S.C.A. § 1155 (West 2002 &
Supp. 2006); 38 C.F.R. §§ 4.116, 4.118, Diagnostic Codes
7628, 7806 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
As a preliminary matter, the Board notes that regulations
enacted under the Veterans Claims Assistance Act of 2000
(VCAA) require VA to notify claimants and their
representatives of any information that is necessary to
substantiate a claim for benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103(a), 5106, 5107, 5126 (West 2002 and Supp.
2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a)
(2007).
The United States Court of Appeals for Veterans Claims
(Court) has held that this notice must be provided to a
claimant prior to an initial, unfavorable decision on a claim
for VA benefits by any VA regional office (RO). Pelegrini v.
Principi, 18 Vet. App. 112 (2004) (Pelegrini II).
Regulations also dictate that VA has a duty to assist
claimants, essentially providing that VA will make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(c).
In the present case, the issue on appeal arises from a claim
for an initial, increased rating for benign breast mass,
bilateral. The Board notes that the veteran's claim was
received in February 2004. In March 2004, prior to its
adjudication of this claim, the RO provided notice to the
claimant regarding the VA's duty to notify and to assist.
Specifically, the RO notified the claimant of information and
evidence necessary to substantiate the claim; information and
evidence that VA would seek to provide; and information and
evidence that the claimant was expected to provide. The
veteran was advised to notify VA of any information or
evidence he wished VA to retrieve for him. Finally, the
claimant was advised via letter of disability ratings and
effective dates in accordance with the Court's ruling in
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) in
March 2006. Thus, the Board finds that the content and
timing of the March 2004 VCAA notice comports with the
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b).
In the case of Fenderson v. West, 12 Vet. App 119 (1999), the
Court emphasized the distinction between a new claim for an
increased evaluation of a service-connected disability and a
case, such as this one, in which the veteran expresses
dissatisfaction with the assignment of an initial disability
evaluation where the disability in question is service-
connected. VA must assess the level of disability from the
date of initial application for service connection and
determine whether the level of disability warrants the
assignment of different disability ratings at different times
over the life of the claim-a practice known as "staged
rating." In this case, a uniform rating is warranted.
To that end, the March 2004 VCAA letter in this case did not
provide notice of the type of evidence necessary to establish
a disability rating or effective date should the claim for
service connection be granted. In June 2004 rating decision,
the RO granted service connection for benign breast mass,
bilateral, and the issue on appeal concerns the claim of
entitlement to a compensable evaluation for this now service-
connected disability.
However, even though the VCAA letter did not include adequate
notice of what was needed to establish a disability rating
and effective date, the Board finds no prejudice to the
claimant in proceeding with the issuance of a final decision.
See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the claimant has been prejudiced thereby). In this
regard, the Board observes that the VCAA notice was properly
tailored to the application for the original request for
service-connected benefits. Further, VA sent the veteran a
letter regarding the appropriate disability rating or
effective date to be assigned in March 2006. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
As stated, the RO awarded service connection for benign
breast mass, bilateral in a June 2004 rating decision and
later assigned an initial, non-compensable disability rating
effective February 1, 2004 (date of claim). Therefore, the
VCAA letter served its purposes in that it provided section
5103(a) notice of the claimant; and its application is no
longer required because the original claim has been
"substantiated." See Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
In the claimant's December 2004 notice of disagreement (NOD),
the claimant took issue with the initial, non-compensable
disability rating and is presumed to be seeking the maximum
benefits available under the law. Dingess/Hartman v.
Nicholson.; see also AB v. Brown, 6 Vet. App. 35 (1993).
Therefore, in accordance with 38 U.S.C.A. §§ 5103(a) and
7105(d), the RO properly issued a June 2005 statement of the
case (SOC) which contained, in pertinent part, the pertinent
criteria for establishing a higher rating. See 38 U.S.C.A.
§ 7105(d)(1). Therefore, VA complied with the procedural
statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d),
as well as the regulatory requirements in 38 C.F.R.
§ 3.103(b). See also Dingess/Hartman. The claimant was
allowed a meaningful opportunity to participate in the
adjudication of the claims. Thus, even though the initial
VCAA notice did not address a higher rating, subsequent
documentation addressed this matter; there is no prejudice to
the claimant. See Overton v. Nicholson, 20 Vet. App. 427
(2006).
With respect to the duty to assist, the Board notes that the
veteran has undergone a VA examination in conjunction with
his claim for service connection. 38 C.F.R. § 3.159(c)(4).
There is no objective evidence indicating that there has been
a material change in the veteran's condition since the
claimant was last examined. 38 C.F.R. § 3.327(a). The duty
to assist does not require that a claim be remanded solely
because of the passage of time since an otherwise adequate VA
examination was conducted. See VAOPGCPREC 11-95. The VA
examination reports are thorough and the examinations in this
case are adequate upon which to base a decision. The records
satisfy 38 C.F.R. § 3.326.
Additionally, the claimant's service medical records and
pertinent post-service medical records have been obtained, to
the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R.
§ 3.159. There is no indication in the record that any
additional evidence, relevant to the issue decided herein, is
available and not part of the claims file.
Additional efforts to assist the veteran in accordance with
the VCAA would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided).
In summary, the evidence does not show, nor does the veteran
contend, that any notification deficiencies have resulted in
prejudice. See Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006) (holding that due process concerns with respect to VCAA
notice must be pled with specificity). Therefore, the Board
finds that it would not be prejudicial to the veteran to
render a decision at this time.
Increased Rating
As noted above, the veteran filed a claim for benign breast
mass, bilateral, in February 2004. In April 2004, the
veteran was afforded a VA examination. The examiner noted
that the veteran had "bilateral breast masses." At that
time, the breasts were not tender, and no discharge was
reported. There was "a little drainage" occasionally.
According to the report, ultrasound and mammograms conducted
by the Air Force surgery department "did not show any
suggestion of breast cancer." A mammogram in June 1998 was
also negative. A 1 cm fibrous mass was reported above the
left areola, and a 1 cm mass was present "just superior
lateral" to the left areola. "There was no axillary
lymphadenopathy."
Service connection for benign breast mass, bilateral, was
granted via a June 2004 rating decision. However, the
veteran was assigned a non-compensable rating.
A VA surgery consultation in December 2004 noted, "The
bilateral breasts have several lipoma-like masses throughout.
However, in the retroareolar area, there are no masses
whatsoever. There is no nipple discharge, nipple retraction,
or skin changes noted." The examiner proffered a diagnosis
of lipomatous disease of the bilateral breasts, not
representative of gynecomastia.
The Board notes that disability evaluations are determined by
comparing a veteran's present symptomatology with criteria
set forth in the VA's Schedule for Rating Disabilities
(Rating Schedule), which is based on average impairment in
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
When a question arises as to which of two ratings apply under
a particular diagnostic code, the higher evaluation is
assigned if the disability more closely approximates the
criteria for the higher rating. 38 C.F.R. § 4.7. After
careful consideration of the evidence, any reasonable doubt
remaining is resolved in favor of the veteran. 38 C.F.R. §
4.3. The veteran's entire history is reviewed when making
disability evaluations. See generally, 38 C.F.R. 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995).
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R.
§§ 4.1, 4.2. The Board has considered all the evidence of
record.
Benign neoplasms of the breast will be rated according to
impairment of function of the skin. 38 C.F.R. Part 4,
Diagnostic Code 7628. The RO rated the breast residuals by
analogy to dermatitis or eczema, under diagnostic code 7806.
According to Diagnostic Code 7628, when more than 40 percent
of the entire body or more than 40 percent of exposed areas
are affected, or; constant or near-constant systemic therapy
such as corticosteroids or other immunosuppressive drugs are
required during the past 12-month period, a disability rating
of 60 percent is warranted. When 20 to 40 percent of the
entire body or 20 to 40 percent of exposed areas are
affected, or; systemic therapy such as corticosteroids or
other immunosuppressive drugs are required for a total
duration of six weeks or more, but not constantly, during the
past 12-month period, a 30 percent rating is assigned. When
at least 5 percent, but less than 20 percent, of the entire
body, or at least 5 percent, but less than 20 percent, of
exposed areas are affected, or; intermittent systemic therapy
such as corticosteroids or other immunosuppressive drugs are
required for a total duration of less than six weeks during
the past 12-month period, a rating of 10 percent is
warranted. When less than 5 percent of the entire body or
less than 5 percent of exposed areas are affected, and; no
more than topical therapy is required during the past 12-
month period, a non-compensable rating is assigned.
It is further noted that service-connected disabilities are
compensated on the basis of average impairment of earning
capacity resulting from such injuries in civil occupations.
38 U.S.C.A. § 1155. Consequently, while the breast lumps are
undoubtedly troublesome and their removal or biopsy may be
briefly painful, VA must rate the current disability as it
applies to the Diagnostic Code. Here, there is no evidence
of compensable disability. The medical reports repeatedly
describe a condition that does not approximate any applicable
criteria for a compensable evaluation. 38 C.F.R. § 4.7.
Since less than 5 percent of the body surface is involved,
and there is no involvement of an exposed area or a
requirement for treatment, a non-compensable rating must be
assigned.
In support of his claim, the veteran submitted treatise
evidence to show that his condition may lead to a more
serious problem. The Board has carefully considered the
excerpts submitted in his December 2004 notice of
disagreement. Medical treatise evidence can provide
important support when combined with the pertinent opinion of
a medical professional. Similarly, medical treatise evidence
could "discuss generic relationships with a degree of
certainty such that, under the facts of a specific case,
there is at least a plausible causality based upon objective
facts." Mattern v. West, 12 Vet. App. 222, 229 (1999);
Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11
Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521
(1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). Here,
the aforementioned information is simply too general to merit
an increased rating at this time, or to outweigh the specific
medical evidence in this case which is directly pertinent to
this veteran.
While the veteran may feel that his service-connected breast
condition warrants a compensable evaluation, the objective
findings of the trained medical personnel are substantially
more probative in determining the extent of the disability
and whether it meets the applicable criteria. Here, the
medical reports repeatedly demonstrate that the service-
connected breast mass does not approximate any applicable
criteria for a compensable evaluation. As the preponderance
of the evidence is against the veteran's claim for an
increased, compensable rating for his service-connected
benign breast mass, bilateral, the benefit of the doubt
doctrine is not applicable and the appeal must be denied. 38
U.S.C.A. § 5107(b).
ORDER
Entitlement to an initial, compensable rating for benign
breast mass, bilateral, is denied.
REMAND
The veteran contends that he has a right knee condition
related to his period of active service. Although a VA
medical report from December 2004 diagnosed the veteran with
"mild degenerative spurring of the tibial spines," the VA
examiner did not provide an etiological opinion as to whether
his current knee condition is medically related to his period
of active service.
Pursuant to VA's duty to assist, VA will provide a medical
examination or obtain a medical opinion based upon a review
of the evidence of record if VA determines it is necessary to
decide the claim. 38 C.F.R. § 3.159(c)(4)(i). In McLendon
v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that
the third prong of 38 C.F.R. § 3.159(c)(4)(I), requires that
the evidence of record "indicate" that the claimed
disability or symptoms may be associated with service,
establishes a low threshold. See also Locklear v.
Nicholson, 20 Vet. App. 410 (2006).
In light of the aforementioned evidence, the Board finds that
the veteran should be afforded a VA examination to determine
the relationship, if any, of the veteran's right knee
condition to his military service.
Accordingly, the case is REMANDED for the following action:
1. Schedule the veteran for a VA
examination, to include all appropriate
diagnostic testing, to determine the nature
and etiology of any current disability of the
right knee. The claims file must be made
available to the examiner and the examiner
should indicate in his/her report whether or
not the claims file was reviewed. Any
indicated tests should be accomplished. A
rationale for any opinion expressed should be
provided. The examiner should respond to the
following:
Is it at least as likely as not (a 50 percent
probability or greater) that the veteran's
right knee condition had its onset in
service, degenerative joint disease (if
present) had its onset within one (1) year of
service discharge, or is otherwise
attributable, to his period of active
service?
Note: The term "at least as likely as not"
does not mean merely within the realm of
medical possibility, but rather that the
weight of medical evidence both for and
against a conclusion is so evenly divided
that it is as medically sound to find in
favor of causation as it is to find against
it.
2. The AMC should then readjudicate the
claim on appeal in light of all of the
evidence of record. If the issue remains
denied, the veteran should be provided with a
supplemental statement of the case as to the
issue on appeal, and afforded a reasonable
period of time within which to respond
thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs